News

Judge rules in favor of Recall Persky campaign

With injunction lifted, campaign to begin gathering signatures as soon as possible

Michele Dauber, Stanford University law professor and chair of the Recall Persky campaign, far left, celebrates with supporters after a court hearing on Monday, Aug. 28, in San Jose. Photo by Elena Kadvany.

On Thursday, Aug. 31, Judge Kay Tsenin issued her final decision, ruling that the Santa Clara County Registrar of Voters is the proper official to oversee the recall and that the recall campaign's petition was "neither misleading nor inaccurate" and can proceed.

The group working to unseat Santa Clara County Judge Aaron Persky won a legal victory on Monday afternoon, when a retired judge tentatively ruled that its recall petition is lawful and can proceed, lifting a temporary restraining order that had prevented the campaign from gathering signatures to place the measure on an upcoming ballot.

Kay Tsenin, a retired San Francisco judge brought in to hear a legal challenge brought by Persky, disagreed with Persky's claims that the secretary of state, rather than the Santa Clara County Registrar of Voters, should oversee the recall, and that the replacement for a recalled judge should be appointed by the governor rather than elected.

Persky's attorney, Elizabeth Pipkin of firm McManis Faulkner, argued in Downtown Superior Court in San Jose on Monday that under the state constitution and election code, trial court judges like Persky should be considered as state officers, so should not be recalled in a county election.

In her tentative ruling, Tsenin disagreed, and said the recall petition was "properly filed with the Registrar of Voters."

At the request of the recall campaign's attorney, Fredric Wooche of Los Angeles firm Strumwasser & Woocher, Tsenin on Monday also lifted a temporary restraining order granted by a previous judge that had blocked the campaign from collecting signatures. She noted that if Persky's legal team appeals the final decision, a court of appeals could decide to invalidate these signatures.

Monday's ruling "validates our belief that Judge Persky filed a frivolous lawsuit that was intended to stall and delay and obstruct the democratic process, and also to waste taxpayer money," Recall Persky chair Michele Dauber told reporters after the hearing.

The campaign intends to start collecting signatures as soon as possible, Dauber said. Official petitions were being held by the campaign's petition circulator in Los Angeles, who was immediately called after the hearing to put them on a truck to Santa Clara County.

"We are hoping to be out there tomorrow," she said.

The Registrar of Voters and California attorney general have also both said they disagree with Persky's position. Last week,

California Attorney General Xavier Becerra filed a motion to intervene in the lawsuit, siding with the recall campaign.

Tsenin gave Persky's lawyers until Wednesday to respond to what Pipkin argued were "new" arguments in the attorney general's intervention application.

The judge will issue her final decision on Thursday, Aug. 31, just one day before a looming deadline for the recall campaign to start collecting signatures in order to be able place the recall measure on the June 5, 2018 ballot. If the campaign was unable to start collecting signatures by Sept. 1, the recall measure would have been placed on the November 2018 ballot.

Pipkin told reporters after the hearing that they will "potentially" appeal the decision but are hopeful Tsenin will ultimately agree that their "interpretation is correct and does comport with the constitution of California."

"It's not a stall tactic; it's about following the law," Pipkin said. "The people of this state voted for the constitution, they approved it and that needs to be respected."

Steve Mitra, assistant county counsel for Santa Clara County, appeared in court on behalf of the Registrar of Voters, and Deputy Attorney General Aaron Jones on behalf of the secretary of state.

Mitra requested that Tsenin restore the 17 days the recall campaign lost during this legal challenge to gather signatures. The recall campaign will now have 160 days to collect 58,634 signatures required to place the measure on the ballot.

Posted by Another Pesky misjudgement
a resident of College Terrace
on Aug 28, 2017 at 9:41 pm

Now Judge Persky has shown that his lack of judgement extends beyond his own courtroom. He has managed to show his contempt for elections law and the democratic process, not just for women in Santa Clara County.

Posted by Anonymous
a resident of Another Palo Alto neighborhood
on Aug 29, 2017 at 7:24 am

Here it says -
Opponents of the recall effort argue that the campaign threatens judicial independence, and that Persky made a lawful decision in the Turner case.
It's not argument, it's fact. Judge Persky followed the law and the recommendations and procedures in making a lawful decision. The Commission on Judicial Performance found he did nothing wrong. Dauber and her followers do threaten the independent judiciary.
I support him using the courts (how odd that a judge would do so!) to fight back against this and find it amusing at all the outrage by law professor dauber that using courts is a bad thing.

Posted by Novelera
a resident of Midtown
on Aug 29, 2017 at 1:10 pmNovelera is a registered user.

Couldn't help but notice that Persky has a female lawyer, just like a lot of rape defendants hire women attorneys. The theory apparently is: how bad could he be if a woman is defending him? The firm representing Persky has on their web page only 28% female attorneys, but Persky has a woman. Coincidence? Don't think so.

Posted by George
a resident of Old Palo Alto
on Aug 29, 2017 at 8:33 pm

Civility is a process. We may not arrive at done for a long time, perhaps even after generations of efforts to refine it and deliver it perfectly. We weren't there yet with the OJ verdict many thought, maybe we are a little further now.

I believe there is far too much anger in this recall - it's indeed sad to see this minority obsession and this amount of vengence in our community. Many see this as an assault on the court, our court. The court, and those advising, made a descision that some feel was theirs to make and theirs to make now, by any means. Many are grateful that our system of justice includes discretion.

The Turner verdict didn't deliver enough pain for some and so it continues on until more pain can be added with the recall of Persky. The Hurricane, now so much in the news, reminds that Community is best when it works together.

The community learns and adjusts and keeps trying to get to perfect justice but not because of the Daubers (I doubt that she truly represents any community). This recall does not serve women. It serves nothing.
[Portion removed.]

Posted by Democrat
a resident of Greenmeadow
on Aug 29, 2017 at 9:00 pm

Persky's defenders want to say that it is uncivil to lose the democratic process. Unbelievable double talk. One thing that is clear from all of this is that Persky is willing to do or say anything to keep his job.

Posted by Incredulous
a resident of College Terrace
on Aug 29, 2017 at 10:45 pm

There are dangers in recalling a judge simply because his ruling on a case is unpopular.
Here is a well written article that explains the reasoning for the arguments against recalling Judge Aaron Persky.

Also on a side note. I don't get this. We can recall Persky.. but we can't do anything when Trump tramples the constitution and pardons Arpaio? When it is becoming increasingly clear he is not fit to govern and he is incredibly corrupt? THAT we can't do. We allow a single man to commit nepotism and trample the constitution and do anything he pleases .. yet here we are...

Posted by jerry99
a resident of Barron Park
on Aug 30, 2017 at 11:00 am

people should find something useful to do rather than try to endlessly push their political agendas. This recall is nonsense. Do something useful like teaching the local kids to read and write or going down to Houston and helping somebody in need [portion removed.]

Posted by Novelera
a resident of Midtown
on Aug 30, 2017 at 2:33 pmNovelera is a registered user.

@Incredulous You've made a false equivalence saying that local efforts to attempt to recall a judge are a waste of time when Trump's outrageous acts are going on. Ever hear of the phrase: "Think globally, act locally." Just because many people despise Trump's presidency doesn't mean that's all that concerned citizens might want to achieve. And, if people don't agree with the recall, apparently like yourself, then just vote no.

I'd say the same thing to Jerry99. I'm on several committees urging congressional action on the Russian scandal. I write letters. I protest. I donate money to many charitable organizations. There's no reason I can't also wish to see Judge Persky lose his seat on the bench.

Posted by Recall Mania
a resident of Los Altos
on Aug 31, 2017 at 1:45 am

Hmm, will this ruling change on Thursday? Are people counting their chickens
before they are hatched? I can't believe these [portion removed] that think recalling a judge is the way to protest the law that needed to be changed, and the probation department's recommendation for relative leniency in this case. Make it hard to convict rapists because the punishment is so severe even in light cases like this. Why not argue for the death penalty for the kid? The way I see it an older non student woman got very drunk at a party and walked away from the party with a kid who attended the institution. The real problem is that alcohol is so abused. You could indeed shoot the kid and it would not deter the situation from recurring, unless you take the alcohol attitudes out of the equation.

Posted by Recall Mania
a resident of Los Altos
on Aug 31, 2017 at 1:48 am

Question: These recall [portion removed], have they examined the recommendations of the probation department in cases heard by all judges? Do they always recommend lenient treatment? If not, then how often?

So if it's a 1 in 100 chance the probation department recommends such leniency, then
is the job of the judge to override them? What if it is 1 in 50 or 1 in 10? How can you pick on the judge until you know the answer to this?

Posted by Correction
a resident of Los Altos
on Aug 31, 2017 at 1:31 pm

The last one says Turner convicted of 3 crimes. True. But there is a mistake in saying they all involved an unconscious woman. To me, this is a major point. One count was for penetration of an intoxicated person, one count was penetration of an unconscious woman, and one count was assault with the intent to commit rape against an intoxicated and/or unconscious woman. The crux of the degree is just whether she was intoxicated or unconscious. Even the convictions don't specify. She may have been unconscious but how do you tell when this occurred? [Portion removed.]

All in all, not a good example of lenient attitudes towards rape in general. It was a terrible situation that so far as we know continues to this day. Drunken kids aren't going to consider the sentences received in the past by their peers. You have to stop them from getting drunk in the first place. [Portion removed.]

Posted by Feminist
a resident of another community
on Oct 29, 2017 at 9:50 am

The people who elected officials have the right to recall them as well. We the people are the boss of those elected. Judicial independence does not equal judicial corruption. This corruption is the norm in Santa Clara County justice system. I personally trashed Commissioner Irwin Joseph on line by publicly sharing facts about his decisions in the court room. He chose an early retirement (thank you God you save me time!)I am supporting Michele with this, and we won't stop until this big pig behind the bench called Persky is out. All rapists deserve more than three months in jail. If the law has to be changed so be it! Slavery was once legal. It seems the sexual slavery of women and children is still legal since rapists receive nothing for their crimes. Santa Clara County Corrupted Judges, enough is enough; suficiente es suficiente! If you engage in corruption and destruction of people's well-being, you are going to the dogs. Hold my beer on that. I give a shit about your respected titles if you are corrupted. Who would be the next judge after Persky to receive a high dose of public humiliation? Pending: This is what feminism looks like! SOLO LA MUERTE NO VA A PARAR!